Arabi Gin Co. v. Plexus Cotton, Ltd. (In re Joseph Walker & Co.)
472 B.R. 696
| Bankr. D.S.C. | 2012Background
- Ear-lam, a Plexus Cotton executive residing in Liverpool, sought a protective order to depose him in Liverpool rather than Columbia, South Carolina.
- Plaintiffs sought to depose Ear-lam in South Carolina as part of an adversary proceeding involving alleged corporate veil piercing and various claims against Plexus and the Debtor.
- Rules governing deposition location are not fixed by Rule 30 or Rule 26(c); courts have discretion to set location under a protective order.
- There exists a presumption that a nonresident defendant should be deposed where he resides or at the defendant’s principal place of business.
- Courts consider factors such as location of counsel, number of corporate representatives, potential discovery disputes, travel for business, and equities.
- The court held that Plaintiffs did not sufficiently overcome the presumption, and ordered Ear-lam’s deposition in Liverpool, United Kingdom.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deposition should be in forum or Liverpool | Plaintiffs contend SC is more convenient and efficient. | Ear-lam argues presumption favors deposition where he resides. | Liverpool deposition required. |
| Impact of number of corporate reps and travel | Multiple Plexus reps and overseas witnesses favor SC for efficiency. | Number of reps is uncertain and overseas deposees can be videoed. | Factors weigh in Defendants' favor; no override of presumption. |
| Equities and likelihood of disputes | Discovery disputes and equity favor the forum where alleged misconduct occurred. | Disputes manageable and foreign deposition rules apply; equities do not compel SC. | Disputes and equities do not overcome presumption. |
Key Cases Cited
- Armsey v. Medshares Mgmt. Servs., Inc., 184 F.R.D. 569 (W.D. Va. 1998) (factors for locating depositions of defendants)
- In re Outsidewall Tire Litig., 267 F.R.D. 466 (E.D. Va. 2010) (presumption for deposition location and travel considerations)
- Connell v. Biltmore Sec. Life Ins. Co., 41 F.R.D. 136 (D.S.C. 1966) (deposition location for corporate officers at principal place of business)
- Turner v. Prudential Ins. Co. of Am., 119 F.R.D. 381 (M.D.N.C. 1988) (standard for forum selection in depositions)
- Salter v. Upjohn Co., 593 F.2d 649 (5th Cir. 1979) (peculiar circumstances required to depart from ordinary deposition rules)